On September 30th, 1908, Robert Hering, residing at No. 217 Sumpter street, in the borough of Brooklyn, presented to the acting special deputy commissioner of excise for that borough an application for a liquor tax certificate to carry on business at his residence aforesaid for one year from October 1, 1908, to September 30, 1909. He had continuously occupied the premises since April, 1902, and lawfully carried on the liquor traffic therein under successive certificates duly granted from year to year, the last of which expired on September 30, 1908. In April, 1907, after this last certificate was granted, a religious corporation erected a building within two hundred feet of the appellant's premises and since December 1, 1907, this building had been continuously and exclusively occupied as a church. The appellant's application for a liquor tax certificate on September 30, 1908, was refused because of the proximity of this church building. A writ of certiorari was sued out to review the refusal and the order of the Special Term sustaining the action of the special deputy commissioner of excise has been affirmed by the Appellate Division.

D-Cady Herrick for appellant. The provisions of subdivision 2 of section 24 of the Excise Law were not intended to apply to a place used for trafficking in liquor prior to the erection or establishment of a church or schoolhouse within 200 feet thereof. (Riggs v. Palmer, 115 N. Y. 506; People ex rel. v. Comr. of Taxes, 95 N. Y. 554; People ex rel. Cairns v. Murray, 148 N. Y. 171; Matter of Place, 27 App. Div. 561; 156 N. Y. 691; Matter of Townsend, 195 N. Y. 214.)

Herbert H. Kellogg and Albert O. Briggs for respondents. At the time of making the application for the liquor tax certificate in question by the petitioner, traffic in liquor was prohibited at said premises, No. 217 Sumpter street, under the provisions of the Liquor Tax Law. (Cons. Laws, ch. 34, § 23; Matter of Clement v Van Etten, 57 Misc. Rep. 47;

People ex rel. Cairns v. Murray, 148 N. Y. 172; Bertholf O'Reilly, 74 N. Y. 509; Wynhamer v. People, 13 N. Y. 378; People ex rel. Bassett v. Warden, 17 Misc. Rep. 1; 6 App. Div. 520; Matter of Clement v. Brady, 54 Misc. Rep. 352; Kresser v. Lyman, 74 Fed. Rep. 765; Crowley v. Christensen, 137 U. S. 91; B. Co. v. Massachusetts, 97 U. S. 25; People ex rel. Bernard v. McKee, 59 Misc. Rep. 369.)

Per Curiam. Section 24 of the Liquor Tax Law, which prescribes the places in which traffic in liquor shall not be permitted, forbids such traffic in a place within two hundred feet of a building occupied exclusively as a church. The statute which was originally enacted in 1896 provided, however, that this prohibition should not apply to a place which on the 23rd day of March in that year was lawfully occupied for a hotel nor to a place in which the liquor traffic was lawfully carried on at that date. No exception was made in behalf of a dealer in liquors who might lawfully establish and carry on his business in a given locality continuously for many successive years, but who might find that upon the expiration of his liquor tax certificate a building occupied exclusively as a church had been located within two hundred feet of his premises. In such a case, of course, he would be unable to show upon his application for a new certificate as required by the Liquor Tax Law that there was no building occupied exclusively as a church within two hundred feet of his premises, and his inability to do this requires the excise commissioner in such a case under the construction of the statute adopted by the courts below to refuse to issue a certificate.

We see no escape from the logic of the reasoning by which this result was reached at the Special Term and in the Appellate Division. That the operation of the statute in cases like the one now before us is manifestly harsh would doubtless be a cogent argument to support the proposition that the legis lature could not have intended such effect, and might be conclusive were the language of the statute at all ambiguous; but

in view of the clear phraseology of the law the contention is inadmissible and the courts must remit those aggrieved thereby to relief by legislative action.

The order should be affirmed, with costs.

CULLEN, Ch. J., EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; HAIGHT, J., not voting.

Order affirmed.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN F. AHEARN, Appellant.

New York (city of) — removal of borough president by governor on charges — constitutionality of charter provisions relating thereto construction thereof invalid reappointment of removed officer by board of aldermen.

The statutes providing for the removal of a borough president by the governor on charges, after an opportunity to be heard in his own defense, do not conflict with the home rule provisions of the Constitution or violate either the letter or spirit of those provisions which guarantee the principles of local self-government, and are constitutional and valid.

The obligation rests on the courts both to assume that legislation was not intended to beget absurdities, and to exhaust the limit of legitimate construction before affixing to it any such consequences. The principles ordinarily governing the interpretation of statutes command the courts to favor a construction which is most agreeable to reason and justice, to consider the entire statute and to give effect to every clause and part thereof, thus securing a consistent and harmonious whole, and to avoid a construction which would leave any provision of the statute without effect, or which would result in a virtual repeal by implication of one provision by another.

It is not only reasonable, but legally justifiable, to believe that in enacting the provision relative to filling a vacancy in the office of borough president, from which an incumbent had been removed for cause, the legisla. ture had clearly in mind the earlier one relative to removal, and that in giving the power of appointment it intended to authorize the appointment of proper persons, and did not intend to include the power to select a person just found to be otherwise and, therefore, removed, While statutes of the character designated are to be construed with strictness in favor of a defendant, still they are subject to rules of construction which are reasonable under the surrounding circumstances, and

they are not wholly exempt from the application of the principle that the means may be fashioned somewhat to the end, and that the letter is to be read somewhat in the light of the purpose to be accomplished. Keeping in mind the purpose of the statute, the provision for removal should be construed as meaning a permanent and lasting ouster for the remainder of the term of the incumbent from the office which he has been filling, and whose obligations he has been found unable or unwilling to discharge. It should not be construed as contemplating a removal which might be turned into a merely temporary suspension by the immediate appointment to the vacancy caused by the removal of the very person who had just been removed. (Per HISCOCK, J.) The provision of the Constitution relative to removal should be reasonably construed in view of the object sought to be accomplished. The manifest purpose was to provide a summary way for removing from office for the remainder of his term an unworthy official, and the governor was selected as the representative of the people to exercise this important power after the defendant had been afforded a reasonable opportunity to be heard in his defense. This power to remove was undoubtedly limited in its exercise to the balance of the term to prevent any interference with the right of the borough electors to elect a successor after the expiration thereof. (Per E. T. BARTLETT, J.) The statute should receive that liberal construction which will effectuate the purpose to be fairly attributable to the legislative enactment. The power to remove from the office, as the result of proceedings under the statute, coupled with the power conferred to fill the vacancy caused by the removal, negatives the person's right to be reinstated in the office during the term for which he had been elected. (Per GRAY, J.) People v. Ahearn, 131 App. Div. 30, affirmed.

(Argued June 18, 1909; decided October 29, 1909.)

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1909, which reversed a judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer.

The action is one of quo warranto and the question certified to us is, "Does the complaint herein state facts sufficient to constitute a cause of action."

The complaint, amongst other things, alleges that in 1905 the defendant was elected president of the borough of Manhattan for the term of four years beginning January 1, 1906, and at the appointed time duly qualified and entered upon

the discharge of the duties of said office; that in July, 1907, charges were duly made against him and filed with the governor of the state, which in effect accused him of incompetency in and maladministration of his office, copies of these charges being served upon the defendant and he being duly notified to appear and defend himself against the same, which he did; that the hearing continued from time to time through several weeks until on December 9, 1907, the governor made an order that, it appearing to his satisfaction that the charges were true and that the public interest required it, the defendant be removed from his office; that on December 19, 1907, the board of aldermen of the city of New York representing the borough of Manhattan appointed the defendant to fill the vacancy caused by his removal for the unexpired term, and this action was brought to oust the defendant from said office on the ground that such appointment was invalid.

Martin W. Littleton and Frederick Allis for appellant. The principle of home rule that underlies our political institutions applies as well to appointment as to election of local officers. (People v. Albertson, 55 N. Y. 56; People v. Draper, 15 N. Y. 561; Rathbone v. Wirth, 150 N. Y. 467; People v. Mosher, 163 N. Y. 41; People v. Tax, 174 N. Y. 431; Dillon on Mun. Corp. §9; People v. Morton, 156 N. Y. 144; People v. Hurlburt, 24 Mich. 44.) The pivot on which this case turns is the question of eligibility; if defendant was a qualified candidate when he was elected by the aldermen on December 19, 1907, he has good title to his office; otherwise not. (People v. Draper, 15 N. Y. 532; People v. Albertson, 55 N. Y. 56; Rathbone v. Wirth, 150 N. Y. 466; People v. Tax, 174 N. Y. 431; People v. Potter, 47 N. Y. 380; Barker v. People, 3 Cow. 703; People ex rel. Devery v. Coler, 173 N. Y. 115; Speed v. City of Detroit, 98 Mich. 364.) Defendant was an eligible candidate at the time of said aldermanic election to the office he now holds unless he was disqualified by the governor's act of removal on December 9,